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My favourite case

US Supreme Court Justice Taney

Recently, the Irish Times featured an opportunity for some lawyers to name their “favourite case”.

Some choices were reasonable, some were laughable. A major problem in making a decision like this is the fact that court decisions seldom give the lead to society. The lead is established long before the issue reaches the courts. This means that any particular judgment is going to reflect what has already been decided elsewhere and previously.

This is not to say that court decisions are not important; they are. Consider the current German Constitutional court. Nobody should fail to know that the First and Second World War arose partly from an internal crisis in Germany. The “crisis” was the rise of social democrats in the politics of Germany. This was a crisis only from the point of view of people and parties opposed to democracy (and, often, rabidly anti-Semitic. Many of Hitler’s views were held, and had been publicly expressed, by Kaiser Wilhelm before the First World War).

To these people, war would disrupt the process whereby social democrats were growing in popularity. Consequently, they looked for military opportunities.

The German Constitution is the institution that is the current method of suppressing people like those and suppressing their ideas.

In its turn, the German Constitutional court is there to ensure that the Constitution is effective in its purpose.

At a minimum, a judge of that court would be expected be a committed democrat. It would be good also if the judge’s concerns meant that she preferred to invoke human rights law rather than, say, worry about Germany’s current balance of payments.

Which brings us back to the notion of a lawyer’s “favourite case”.

This writer’s “favourite case” is well known in the USA. It is the case of Scott v Sandford [1857]

It has featured in this blog previously, HERE.

In it, the US Supreme Court, presided over by Justice Taney, endorsed the legitimacy of slavery, returned Mr. Scott to his former ‘owner’ and revealed who they were to posterity.

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A Three-way closing

Solicitors (those where we live and practice, at least) know what a three-way closing is. It is from the field of conveyancing.

Conveyancing is the process wherein solicitors prepare documents for the sale, purchase and mortgaging of land and buildings. It is of such public importance that, in Ireland, only a solicitor (and occasionally a barrister) may do the work.

The restriction is justifiable; the cost of a house or other such property is so great and of such importance to the general public that every reasonable effort should be made to ensure the conveyancing process is discharged efficiently.

The public knows the importance of the process. Vendors and purchasers of land and buildings each hire a solicitor, without hesitation, to act for them in conveyancing transactions. The vendor’s solicitor attends to the interests of the vendor and the purchaser’s solicitor attends to the interests of the purchaser. Those interests are, quite frequently, opposed to each other. This fact explains the situation where it is prohibited that a solicitor should act for both parties, in conveyancing, in many circumstances.

Traditionally, banks and building societies secured their interests also by having a solicitor act for them.

So, to “close” the conveyancing transaction, the solicitors for the vendor and the purchaser would meet to exchange the title documents for the payment for the land or building. They would meet in the offices of the lending agent’s solicitor, because that solicitor had the money. The lending agent’s solicitor would release the loan cheque in exchange for the title documents. The bank would pay its solicitor for this work and pass on the fee to the borrower as a cost of the loan. This was the three-way closing.

Some bank executives decided this was wasteful and prevailed on the Law Society of Ireland to endorse and facilitate a new system wherein the purchaser’s solicitor would also act for the bank and would “certify” the title for the bank. The bank would not pay for this work.

Even the traditional system was not without its pitfalls; see ACC Bank plc v Brian Johnston practising under the style and title of Brian Johnston Solicitors and Joseph Traynor and Seamus Mallon third parties. IEHR [2010]

So, it was foreseeable that there would be problems with the “certificate of title” system. See ACC Bank plc v John Tobin practising under the style and title of John A. Tobin Solicitors IEHR [2012]

This writer has a history of acting for a building society in mortgage transactions. Many of these were three-way closings.

When you do work like this, you come to fully understand the benefits of, and the need for, the three-way closing.

So, we urge the Law Society of Ireland to revoke endorsement of the certificate of title system.

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Digital Rights Ireland: Oral Submission to the European Court of Justice on the Data Retention Directive

ECJ buildingMcGarr Solicitors act for Digital Rights Ireland.

The case of Digital Rights Ireland Limited, seeking to challenge Data Retention, reached a significant milestone on the 9th July 2013, when the case was heard before the European Court of Justice in Luxembourg.

The ECJ had received a referral from the Irish High Court, asking it to rule on the question of whether the Data Retention Directive (Directive 2006/24, to its friends) was compatible with basic EU laws.

You can read the text of the High Court’s referral on the ECJ’s website.

All parties were sent a set of questions the Court wanted addressed in Oral Submissions. You can read a copy of them here.

Below are Digital Rights Ireland’s Oral Submissions to the Court, which were delivered by Mr. Frank Callanan SC, Counsel for DRI, before the European Court of Justice. The Court was sitting in Grand Chamber.

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It is our submission that the Directive is not a proportionate measure. This encompasses a submission that it is not proportionate stricto sensu. The Directive is of limited efficacy in relation to the stated purpose of the investigation detection and prosecution of serious crime. It has a deficient evidentiary basis and a lack of measures against abuse. The countervailing negative effects are immense, and entail an interference of exceptional gravity with the right to respect for private and family life under Article 7 of the Charter and the Right to Protection of Personal Data under Article 8. That interference extends to the mass surveillance of citizens of the European Union using the telephone or electronic communications services in their homes.

If the proper functioning of the internal market is the “predominant” purpose of the Directive, the interference with fundamental rights that attends it cannot be justified by reference to a completely different purpose – that of law enforcement – which the Union may not legally pursue on the basis of Article 114 TFEU.

To turn to question 1 raised by the court, the limitations on the scope of the Directive raise significant issues about its efficacy. There are moreover many ways to circumvent the retention of traffic data under the Directive, from the use of public telephone booths and prepaid cell phones to more high tech methods involving the relation to internet communication, commercial anonymisation services, and onion-routing networks. This has implications for the final stage of a proportionality analysis.

As to question 2, the emphasis placed in the Observations on the fact that the Directive does not extend to the contents of communications misses the point. It is abundantly clear the retained data encroaches upon the user’s private sphere, and is capable of facilitating the building up of a profile of the user’s private and social life, of his or her medical history, political connections, economic activities. The potential for building up profiles of individuals increases exponentially if used in combination with other information about them. The more dots that there are to join up, the more intimate and detailed the portrait of the user that can be drawn from them.

In relation to the third question raised by the Court, my client shares the view of the European Data Protection Supervisor in his Opinion on the Evaluation Report that the Directive is “the most privacy invasive instrument ever adopted by the EU in terms of scale in the number of people it effects” . It is respectfully submitted that the interference with fundamental rights involved is unjustifiable whether by reference to the aim of ensuring the proper functioning of the internal market which is the legal basis for the Directive or the purpose of the investigation detection and prosecution of serious crime.

In relation to question 4, the Commission’s 2005 Extended Impact Assessment appended to the Proposal for the Directive has a number of striking deficiencies. It is lacking in analytical rigour and does not provide an empirical basis for the Directive. It appears a priori in favour of data retention conceived in opposition to data retention. In paragraph 4.1 it identified data retention as the single viable option without considering how this might be combined in a less privacy intrusive manner with measures of data preservation. In its own terms, having regard to the limited evidence it cites in relation to how far back data requests went – it states that the investigation into the Madrid bombings relied heavily on traffic data going back three to six months – the Commission “pushed the boat out” in proposing retention periods of one year for telephony data and six months for “internet” data which it candidly justified as “the most acceptable compromise between the different interests at stake”. It states at 4.3.1 that those periods would allow operators to respond successfully to almost all data requests received. The Directive in Article 6 went far beyond even this period in providing for retention for periods of not less than six months and not more than two years from the date of the communication, quite apart from the possibility on extension of the retention periods under Article 12.

In relation to the fact that it is easy to circumvent data retention controls the response of the Impact Assessment seems insufficient and anecdotal. The treatment of the question of fundamental rights is peremptory and declaratory. There is nothing approaching a sustained proportionality analysis.

The Commission’s Impact Assessment is largely comprised of unsupported assertion mostly going towards the uncontroversial proposition the telecommunications data can be useful in the investigation and prosecution of crime. One has to conclude that the European Union legislature did not have objective criteria to justify the adoption of the Directive and relied on the unsupported assertions of the law enforcement authorities of member states and on an empirical basis that was both fragmentary and lacking in transparency.

In relation to question 4(d), it is submitted that looking at the 2011 Evaluation Report of the Commission it is clear there are no statistics from which it can be deduced that the data retention directive has established either an improvement in the detection and prosecution of serious offences or a fortiori the nature or extent of any such improvement. There is no basis advanced for the statement that “overall the evaluation has demonstrated that data retention is a valuable tool for criminal justice systems and for law enforcement in the EU”. The empirical data is patchy and crude and is insufficient to stand up the assertion at paragraph 5.4 that “retained data is integral to criminal investigation and prosecution in the EU”.

As to question 5, the indiscriminate retention of traffic data of users of telecommunications networks requires a high level of justification, and a rigorous analysis of the proportionality of the measure falls to be made.

The Directive may pass the first stage of a proportionality text of suitability or appropriateness. It is manifestly not necessary in the sense that there is no other option less restrictive by which the aim could be achieved. It is also disproportionate stricto sensu in that the means employed went beyond the aim sought to be achieved. Even if the Directive was to be considered suitable and necessary, the burden placed on civil society is wholly disproportionate to the limited benefits achieved.

The benefits have not been demonstrated. The countervailing negative effects are massive and entail an actual (rather than potential) interference of a drastic kind with the right to respect for private and family life under Article 7 of the Charter, and the right to protection of personal data under Article 8. That interference extends to the monitoring of citizen’s behaviour in the home.

The decision of this court in Schecke & Eifert which enunciates a text of strict necessity establishes it was incumbent on the institutions to consider whether less invasive means existed to achieve comparable results. Data preservation is dismissed at the outset rather than weighed against data retention in greatly reducing the invasion of privacy and data protection rights.

The Directive does not provide adequate and effective measures against abuse by national authorities or third parties as required by the Human Rights Court in Klass v Germany, and the retention period appears clearly excessive. Article 51(1) of the Charter which provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must respect the essence of those rights and freedoms affirms the need for the application of a robust proportionality test.

The Directive also fails to meet the requirements on proportionality set in the jurisprudence of the Court of Human Rights on proportionality. In S and Marper v. United Kingdom the Court of Human Rights condemned the “blanket and indiscriminate” retention of DNA samples from all those arrested. Data retention goes much further again, targeting the entire population without any prior suspicion, and raises the concerns noted by the Court of Human Rights in MK v. France where it characterised the storage of fingerprints of the entire population as certainly excessive.

The assumption that private providers are less dangerous than the state as far as the handling of data is concerned, has been properly criticised. Moreover, the failure to make explicit provision for the prohibition of outsourcing or at the very least for the conditions under which outsourcing is to be permitted is, it is submitted, a further vitiating flaw in the Directive.

The observations [of the parties to the case supporting the Directive] place overwhelming reliance on the element of subsidiarity. It is argued that the fact that it is for member states to lay down the conditions for access to the retained data in accordance with requirements of necessity and proportionality, and to the relevant provisions of European Law and of the European Convention on Human Rights renders the Directive effectively immune from challenge. The plaintiff does not accept that this is so. In particular, it is submitted that the court cannot rely on the fact that certain obligations are devolved to the member states to take no account of the manifold risks – one might say the virtual inevitability – of the improper use or inadvertent disclosure of retained data.

This case does not arise in a juridical vacuum. Some of the Observations remarkably seem to assert or imply that there is a consensus among member states about the ends of the Directive if not the Directive itself. They are conspicuously silent about the striking fact that the German, Bulgarian, Romanian, Cypriot and Czech implementation of the Directive have been severely criticised by their supreme or constitutional courts. This is quite apart from the pending actions in other member states.

It is of course true that these judgements were directed at the particular national measures of transposition, but many of the concerns that were canvassed by those courts can be interpreted as bearing on the Directive itself. In this seminal case, in which this court is asked to pronounce on rights of the fundamental kind which bear on the democratic order, where there is a corpus of national constitutional court jurisprudence which addresses not merely the implementation of the Directive in the member states concerned, but the weight to be given to the rights that are engaged, it is appropriate for this court to take general account of those decisions.

There is a striking pattern that has emerged in these cases, in which the striking down of domestic implementation measures reflect concerns in relation to privacy and data protection problems which are inherent in the Directive itself. The national courts have sought by the application of stringent criteria for implementation to achieve a balance that the Directive fails to strike. The very significant difficulties that have been encountered within domestic legal orders in giving effect to the Directive raise obvious questions about the validity of the Directive and about the appropriateness of the model of a very generalised loose fitting law at the European level, the implementation of which is devolved entirely to member states.

The constitutional court of the Czech Republic in its judgement on the national implementing measures states that the court has doubts – doubts that are fully shared by Digital Rights Ireland – about whether the blanket and preventative retention of traffic and location data on almost all electronic communications is a necessary and appropriate tool given the intensity of its interference with the private sphere of a vast number of electronic communication users.

It is our case that the Directive also infringes Article 11 of the Charter . This arises from the general chilling effect of the retention of traffic data and has more specific aspects, for example, in relation to the protection of the confidentiality of journalist’s sources. The same arguments apply as in relation to Articles 7 and 8.

The Quirke Report: A critical analysis

A Magdalen Laundry in Ireland early 20th Century

When the Government announced that they were accepting and implementing the Quirke Report on a Payment scheme for women detained in Magdalen laundries, it was presented as the end of the matter. Minister Shatter said “It also marks the culmination of a process I initiated together with Minister of State Kathleen Lynch… It reflects my promise to the women who resided and worked in the Laundries to see justice done.”

In reality, the first, and potentially most significant, matter to be clarified was exactly what the women were being offered in exchange for settling their claims against the Irish State. I refer to the payment as a settlement because that is exactly what it is – a sum of money designed to be less than that which they might receive as a result of litigation, offered without any admission of liability by the State (hence “ex gratia”) in exchange for which the women waive all their rights to litigate against the State in the future.

Leave aside whether this is the best form of scheme for the Magdalen survivors. It is possible that a scheme of this sort might be attractive to many if the sum offered in settlement meets their needs or expectations. In order to make an informed decision, the women to whom this deal is offered must know exactly what they are being asked to choose.

“How much is being offered?”

At first look, the detailed answer appears to be contained in Appendix A : Table of Payments. Here a women can match the duration of her stay in a Magdalen Laundry (to the year and month) and see how much in General and Special Damages she is being offered to settle her claim. The first thing to strike one is that General damages rise to €40,000- which is what’s offered if a woman’s detention reached 5 years and three months. After that, no matter how many decades more she was held, the General Damages are capped. They don’t go a penny over €40k.

Next comes the money offered by the State in recognition of the time spent doing forced labour without pay. This money- which can be loosely characterised as money in lieu of pay- appears on the Appendix A table to start at €1,500 for three months and rise gradually to a maximum €60,000 for women who were worked for any amount of time after ten years.

If you add the two sums together- The General Damages and Lost Income- you come up with figures that go all the way up to €100,000. That figure was repeatedly referred to by the Minister for Justice on the Launch of the Quirke Report. It sounds like a lot of money for the state to offer in settlement.

But, if I were advising anyone on whether to consider a settlement offer, I would want them to fully understand what was really on offer.

It certainly isn’t a lump sum up to €100,000, despite this inaccurate report by RTE News. In fact, though the Quirke Report is hesitant to spell it out directly in the text of the recommendation, no more than €50,000 will ever be paid out as a lump sum under this ex gratia scheme.

For women who are owed more than that, the balance is simply withheld by the state. Under the settlement proposed by the Quirke Report, the State will instead pay them a small weekly sum until the balance runs out or the women die- whichever happens first.

This is not the same as saying they receive their money in staged payments. If money really belongs to you- even money you’re receiving in staged payments- you can leave it to your children, friends or relatives. No money over €50,000 can ever be left to any loved one in a will- because the women won’t really have been given it.

If a Magdalen survivor were to die before the balance of funds owing to them has been paid out, their estate has no claim on the unpaid monies.

To assess how likely it is that this may happen, we can consider that Mr Justice Quirke says of these women

“A significant number of the Magdalen women are frail and some are very vulnerable. Many are now at an advanced age.”

In offering this settlement, the State proposes to benefit financially from the poor health of those it helped sicken.

So, that’s what’s on offer. Let’s look at the other side of the coin now.

“What is the alternative if I say no?”

Or “What may a woman be giving up if she accepts the offered payment in exchange for to waiving her rights to sue the State?”

Here the answer is more speculative. There is the risk that litigation could prove entirely unsuccessful. Page 40 of the Quirke report presents some of the ways this could come about.

“A number of obstacles may arise in the context of any claims that might be considered or initiated by the Magdalen women. These

include:

(a) claims may be barred by the Statute of Limitations 1957;

(b) prejudicial delay may bar claims even if they come within the “disability” exception in the Statute of Limitations 1957;

(c) evidential difficulties may arise from recalling events from long ago;

(d) it may not be possible to establish negligence or breach of duty by a named defendant and/or a named defendant with sufficient resources to meet any claims;

(e) even assuming proof of negligence, it may be difficult to establish a causative link (causation) between any negligence and loss for which the courts would award compensation. “

They are all risk factors, certainly. But to address each in turn, to demonstrate that there is equally no certainty of failure;

(a) The Statute of Limitations can be amended by the Dáil , as it has in the past in respect of sexual abuse claims. In addition, the Statute only starts to run when you know or ought to have known the nature of a wrong done to you. As the State says it did not know until the McAleese report the extent of State involvement in the wrongs done to the women in Magdalen Laundries, how could the women be held to know?

(b) It may, but the history of institutional abuse claims suggests it probably would not.

(c) This is true of any case, taken at any time.

(d) See (c), with the additional caveat that the State has already provided the public with ample examples of its part in the Magdalen archipelago.

(e) This is simply a matter for the Plaintiff to prove- just as in any litigation. The success of any case is dependant on the evidence available.

So, leaving aside the questions of proving liability, what is the risk the State is seeking to buy off with the settlement terms set out in the Quirke Report? Or in Mr. Justice Quirke’s words

“…the payments which I am recommending are expressly required by my Terms of Reference to be “ex gratia” in nature. They are not and do not purport to comprise full and complete damages to compensate the Magdalen women for injury and loss caused by the wrongdoing of the State. Compensation payments of that kind can, in general, only be calculated and awarded after a detailed (and usually lengthy) adversarial process.”

There is no reason why an ex gratia scheme should deliberately seek to offer less than a full and complete compensation. Rather than meet that moral obligation the State is explicitly seeking to buy off the risk that it would have to pay “full and complete damages to compensate the Magdalen women for injury and loss caused by the wrongdoing of the State.”

The most recent- and most authoritative- case on the damages appropriate to compensate for wrongdoing of the State is Shortt v The Commissioner of An Garda Síochana. ( See Irish Law Report here ) Here the Supreme Court considered an appeal from the High Court by a innocent citizen who had been wrongfully imprisoned on foot of evidence fabricated by certain members of An Garda Síochana.

The Plaintiff was deprived of his liberty for 27 months.

The Supreme Court increased the damages awarded to him in “full and complete” compensation to €4,623,871.

Of that award, €2,250,000 was awarded in respect of General and Aggravated Damages.

A further €500,000 was awarded as Exemplary Damages.

The Chief Justice Mr. Justice Murray set out the principle to be followed in assessing any amount due under an Exemplary Damages heading.

“The amount awarded should be no more than is necessitated to convey, in this case to the State, and the public at large, the level of its disapproval in the light of the gravity of the State’s misconduct.”

These are the contours of the settlement deal on offer from the State. Mr Shortt was deprived of his liberty for 27 months and of his livelihood. His family relationships were damaged and his good name was damaged in the eyes of his community.

He was awarded €2,750,000 in General, Aggravated and Exemplary Damages. The absolute maximum sum on offer under the Quirke Report scheme from the State in General Damages is €40,000.

It will be up to every women who was deprived of her liberty in a Magdalen Laundry to decide whether the deal on offer from the state is right for her.

But it is also open to the rest of us, as citizens of the State, to say that we do not want to again shortchange these women with a fraction of what know we owe them.

Like the Supreme Court, we should be willing to express our “disapproval in the light of the gravity of the State’s misconduct.”

Trashing the Constitution

We are lawyers. Because we are lawyers we know that the Irish Constitution is of importance to our clients. The Constitution is not perfect but it is of immense value and, for example, can allow of the possibility of suing the State for wrongdoing.

The current Government proposal to abolish the Seanad poses a threat to our clients. The threat comes from the destructive effect of the proposal on the Constitution. If the Seanad is abolished, very far-reaching changes to the Constitution will take place.

There will, undoubtedly, be instances of unintended effects if the Government proposal is adopted. By “unintended effects” we mean that they will not have been intended by the electorate.

One clear unintended effect will be the demoralisation of the electorate when it comes to recognition of the value of the Constitution. The sense of the value and importance of the Constitution will be diminished. This, and later Governments will find it easier to impose their will on the electorate, even regarding matters of fundamental importance.

We support the proposal of Senators Catherine Zappone, Feargal Quinn and Joe O’Toole (and some others) for Seanad reform without Constitutional change.

See the proposal HERE.

Vote no to the Government’s bad idea.

UN Commission on Human Rights Letter to Ireland questions the State’s response to the Magdalen Laundries scandal

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Below is an extract from a letter from the United Nations Office of the High Commissioner for Human Rights to the Irish government addressing the government’s responses to the Magdalen Laundries scandal. The letter is dated 22nd May 2013 and can be read in its entirety on the UN’s website at this link. Emphasis added.

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The Committee is pleased that the Government of Ireland commissioned a committee chaired by Senator McAleese to establish the facts of State involvement concerning the Magdalene laundry institutions, as explained in the Response to the Committee concerning follow-up items. We understand from other information available to the Committee that a final report of the McAleese Committee on the Magdalene laundries has now been published and has been examined by the Follow-up Rapporteur. We further note that following its publication, the State party made a full and public apology to the Magdalene laundry survivors, and acknowledged a number of areas of State involvement in the Magdalene laundries. The Committee commends these actions.

 

However, the Committee also notes that while the inquiry conducted by the McAleese Committee had a broad mandate “to establish the facts of State involvement with the Magdalene laundries,” it lacked many elements of a prompt, independent and thorough investigation, as recommended by the Committee in its Concluding Observations. Specifically, the Committee has received information from several sources highlighting that the McAleese Report, despite its length and detail, did not conduct a fully independent investigation into allegations of arbitrary detention, forced labour or ill-treatment. While noting the State party’s Response explained that individuals and groups were encouraged to report any evidence of criminal wrongdoing directly, the Committee also received information that the State party was presented with extensive survivor testimony in the form of reports by Justice For Magdalenes and was aware of the existence of possible criminal wrongdoings, including physical and psychological abuse.

 

With these factors in mind, the Committee would appreciate further information as to the measures the State party is planning to take to ensure that there is a full inquiry into all complaints of abuse, in accordance with the Committee’s original recommendation? Please clarify whether the State party intends to set up an inquiry body that is independant, with definite terms of reference, and statutory powers to compel evidence, and retain evidence obtained from relevant religious bodies? Would such an inquiry be empowered with the capacity to hold public hearings or obtain access to evidence for survivors or representative groups? Would such an inquiry have the authority to conduct a full-scale investigation into the abuses, and issue a public invitation to submit evidence? Given the nature and duration of institutionalized abuse as well as the advanced age (and possible geographical remoteness) of some survivors, what steps does the State party intend to encourage survivors to lodge complaints?

 

On the issue of redress for survivors of the Magdalene Laundries, please clarify how the State party intends to ensure that the proposed fund to assist victims and survivors will in fact be primarily used to help such persons, as it has been publicly stated it would try to do, rather than being used to cover legal or administrative costs? What measures are being put in place to help institutionalized survivors to engage with the redress processes?

 

As regards the law commission investigation established following the McAleese report, and headed by President of the Irish Law Reform Commission, Mr. Justice John Quirke, the Committee understands that he was charged with investigating and reporting back to government with recommendations within three months from 19th February 2013 as to the “establishment of an ex gratia Scheme (to operate on a non-adversarial basis)” for survivors of the Magdalene Laundries, and to make recommendations as to the criteria that should be applied in assessing the help that the government can provide in the areas of payments and other supports, including medical cards, psychological and counselling services and other welfare needs. The committee is concerned that his work in [is] premised on the incomplete investigations carried out by the McAleese Committee. In this regard, the Committee looks forward to leaning of the results of his investigation. Please also clarify whether the Quirke investigation process will have independent statutory powers, be transparent and also subject to an appeals process and independently monitored.

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The Injuries Board gives no awards

An unsafe system of work

The Injuries Board is also known as the Personal Injuries Assessment Board.

The clue is in the name; it assesses the claims of people who have suffered personal injury. Strictly speaking we at McGarr Solicitors do exactly the same. If you want to find out what the “going rate” is to compensate you for a personal injury you can ask the Injuries Board, or, you can ask us.

The answer to the question comes from the same root source; it is an estimate of the sum of money a judge would give you if you issue proceedings for your personal injury claim.

Of course, we, and the Injuries Board, are each making an educated guess. In fact the only certain way of finding out what a judge will give you for your injury is to go to trial before the judge.

Here at McGarr Solicitors we do not make “awards” of damages for personal injury claims. We do not have that power. We do not claim to have that power.

However, neither does the Injuries Board have that power, even though they tell the unsophisticated members of the press that they do have that power.

They cannot compel a Respondent (the person who has injured the person applying to the Injuries Board) to make a payment to an applicant, unless the Respondent agrees to make payment.

At McGarr Solicitors we can do the same. (We do not claim any great credit for this; we cannot do it alone, but neither can the Injuries Board).

At McGarr Solicitors, when a Respondent refuses, or neglects, to engage with the Injuries Board we take steps to bring the Respondent to account. The Injuries Board cannot and will not do this.

We do it by issuing court proceedings for the applicant.

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Internet blocking in Ireland: Some quotes

There was a problem connecting to Twitter.

 

For all blocking methods circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users.

–“Site Blocking” to reduce online copyright infringement, OFCOM Report,22nd May 2010

The law in this area is extremely complex, particularly since the European Court of Justice has given an important decision restricting the use of blocking in the meantime. That decision found that filtering would be impermissible if it undermined freedom of expression and blocked lawful communications – something that is inevitable if this proposal is adopted.

– Ireland’s SOPA: an FAQ, TJ McIntyre, 23rd January 2012

JUNIOR MINISTER SEÁN Sherlock has this afternoon confirmed that the controversial statutory instrument that reinforces online copyright laws in Ireland has been signed into law.

– Sherlock confirms that ‘Irish SOPA’ has been signed into law, The Journal, 29th February 2012

22. Mr. McIntyre goes on to point out that under s. 2 of the European Convention on Human Rights Act 2003, this Court is under a duty to interpret and apply any statutory provision or rule of law insofar as is possible in a manner compatible with the State’s obligations under the European Convention on Human Rights. This, he says, is a duty which exists independently of any point raised by the parties in a matter where non-parties are affected. The applicant is therefore concerned to assist the court in addressing the requirements of the European Convention on Human Rights in the context of internet filtering.

Judgment refusing Amicus status to Digital Rights Ireland Ltd, EMI and Ors -v- UPC and Ors, Mr Justice Kelly, 3rd May 2013

Notwithstanding his [Charleton J.] having concluded that a blocking injunction in the manner sought was not available in Irish Law, he went on to state at para. 1.34:-

“Were it available, I would grant it.”

The lacuna referred in that judgment has been filled by S.I. No. 59 of 2012, the European Union (Copyright and Related Rights) Regulations 2012 which inserted s. 40(5A) into the Copyright and Related Rights Act 2000 (“the Act”).

– Judgment in EMI and Ors -v- UPC and Ors, Mr Justice McGovern, 12th June 2013

After PRISM: Who can access Ireland’s Data Retention Snooper’s Gold?

Stories of Beowulf slave stealing golden cup

The PRISM leaks will come to be seen as one of the most significant stories of the year.

The response of the various branches of Government in the US is to simultaneously hold that the leaks aren’t news at all– that they don’t tell the public anything they didn’t already know- and at the same time to decry the leaker for risking the very security of the USA by revealing state secrets.

Leaving aside the question of how both these things can be true, I thought I’d think about who, in Ireland, has been given access to the trove of personal data being held by telecommunication companies under the Communications (Retention of Data) Act 2011.

Section 6 of the Act empowers certain officers of An Garda Siochana, the Defence Forces and the Revenue Commissioners to gain access to the records which show everywhere you’ve been, who you met, who you called, when and how often you call (or text), what web pages you look at and so on.

Though I consider that section to be drafted very broadly, they are subject to oversight –however cursory– by a judge.

But a careful reader will notice that the Disclosure powers granted by S6 are not stated to be the only possible conditions for disclosure. Nor does S6 of the Act state that those designated officials are the only people who may access the Snooper’s Gold. (See below for UPDATE on this point)

All through the State’s history, it has been considered a good idea to put into legislation powers to compel the disclosure of any and all records that might help an official to do their business. Of course, what was mainly being imagined when those provisions were passed was a bundle of documents in a buff-coloured file, held together with a fraying treasury-tag.

Nonetheless, the powers remain on the books. Let’s do a search for the phrase “any records” in the Irish Statute Book.

Well, that’s quite a haul. Straight away, we can see that Section (64) (2) of the Nurses and Midwifes Act 2011 gives the members of a Fitness to Practice Committee the power to enforce “the attendance of witnesses and compelling the production of records”. There is no reason why such a summons should not be issued against a phone operator or ISP if the Fitness to Practice Committee thought it relevant.

Similarly, Section 45 (1) of the Nursing Home Support Scheme Act 2009 permits officials from the Health Service Executive to gain access or a copy of any relevant records for the purposes of helping them to evaluate an application.

Section 45 (11) helpfully defines a relevant record.

“relevant record” means any record which will or may assist the Executive to determine an application for State support or a request for refundable State support.

So, if for some reason a HSE official- of no particular rank- thinks it may be helpful in assessing your application for Nursing Home Support to know where you and your family members have been for the last two years off they may go to your phone company to find out.

The members of a Medical Council Fitness to Practice Committee of inquiry may, like the Nurses and Midwifes committee compel a witness to attend with any records, per Section 64 (1) (c).

Section 30 (1) of the Marine Shipping (Investigation of Marine Casulalties) Act 2000 empowers a person (described in Section 16(1) of the act as “such consultants, advisers and investigators (including investigators nominated by the Chief Surveyor from the Marine Survey Office of the Department of the Marine and Natural Resources) as it considers necessary for the performance of its functions”) investigating a marine casualty.

If they think there’s a record

“necessary for the purpose of an investigation the investigator may require a person to deliver to a place nominated by the investigator, and within such reasonable period as the investigator specifies, any record, to enable the investigator to inspect and copy it, and the person shall comply with the requirement”

And so on. I think the point is made.

The creation of the Data Retention honey pot has allowed a wide array of people – at all levels of state machinery- to potentially gain access to the most intimate details of our lives. Who we talk to, where we go, who we meet when we get there and so on. Are you applying for financial help under the Nursing Home Scheme? Then a HSE official can see if you have been at an Airport in the last two years. If so, well, were you going on holiday?

The debate about what is an appropriate level of access- maybe it is proper that a private citizen nominated to investigate a marine casualty should gain access to other citizen’s details- can only happen when we know what is going on.

I don’t know whether a HSE official ever has compelled the production of an individal’s personal data in considering an application under the Nursing Home Support scheme. But I do know that eventually one will if empowered to do so.

Personally, given what the Data Protection Commissioner has already revealed about the propensity of Dept of Social Welfare officials to engage in inappropriate access of the -far less revealing- trove of data held in the Department’s database I would prefer if, at the very least, the same level of judicial oversight which applied to the Gardaí and the Army applied to HSE officials.

UPDATE: It has been pointed out to me in comments that Section 5 of the Act does seek to limit the circumstances when service provider may access the data retention trove.

It reads:

5.— A service provider shall not access data retained in accordance with section 3 except—
(a) at the request and with the consent of a person to whom the data relate,
(b) for the purpose of complying with a disclosure request,
(c) in accordance with a court order, or
(d) as may be authorised by the Data Protection Commissioner.

However, this does not mean that none of the above powers will apply. The investigatory committees, for example, are explicitly granted the powers to issue order equivalent to court orders by their respective acts. And section (d) seems to leave the Data Protection Commissioner as the arbiter of what is a legitimate request under all other provisions.

Harley Medical Group (Ireland) Ltd; Judgment on Winding-up Petition

The Application

This is the Judgment of Ms. Justice Laffoy to the Application by the Harley Medical Group (Ireland) Ltd to be wound up by the Irish High Court.
Despite its name, The Harley Medical Group (Ireland) Ltd is not an Irish company, but a company incorporated in the British Virgin Islands.

We act for 20 Irish clients of The Harley Medical Centre Ltd. It traded at many clinics in the UK and had one clinic in Dublin at 5 Herbert St. Dublin 2. Our clients attended the Dublin clinic.

Our clients have personal injury and other claims against The Harley Medical Centre Ltd. arising from, inter alia, the breach of contract of The Harley Medical Centre Ltd. in supplying unmerchantable goods to our clients.

This application by the Harley Medical Group (Ireland) Ltd was the first application by a non-EU company to an Irish Court for a winding up order under the current legal regime.

The Court rejected the assertion by the Harley Medical Group (Ireland) Ltd that the EU Insolvency Regulation did not apply to this application.

“The primary ground of Opposition advanced by counsel for the Opposing Creditors was that the Court does not have jurisdiction to make the winding up order, because the Insolvency Regulation applied to the Company and its centre of main interests is not in this jurisdiction.

Counsel for the Company characterised the submissions made on behalf of the Opposing Creditors as having been made in a “closely reasoned” manner. I would go further; those submissions put this Court on the right path.”

– Paragraph 10 of Ms. Justice Laffoy’s Judgement

Effect on claims

McGarr Solicitors was the only firm who, at hearing, opposed the making of a winding up order on behalf of their clients.

The Harley Medical Centre Ltd. supplied our clients, on various dates, with PIP breast implants. PIP breast implants are acknowledged to be defective. They rupture at a rate above the “industry” norm and are filled with industrial grade silicone, rather than medical grade silicone.

It is important to note that no winding up order has yet been made against the British Virgin Islands company. The Plaintiff’s legal petition was found not to contain the necessary statements which would permit such an order to be made.

The Court has ordered that a winding up order will only be granted subject to the Harley Medical Group (Ireland) Ltd filing a further, compliant, petition and another affidavit swearing to the truth of the amendments.

For women who were supplied with PIP breast implants, this winding up process has confirmed the existence of multiple Insurance Policies covering the British Virgin Islands company for certain kinds of claims in certain years. It is quite possible that further insurance policies exist, which were not disclosed to our firm. The Directors of the Harley Medical Group (Ireland) Ltd did not deny that this was the case.

In addition, claims against the Harley Medical Centre Ltd, a UK company which traded out of 5 Herbert Place, Dublin, are unaffected by this judgment.

The Court’s Judgment

The essence of the judgment is as follows:

  1. The Court found that the legal arguments of McGarr Solicitors (for some Harley PIP breast implant victims) were valid. Consequently, the Insolvency Regulation applies to the Harley petition to be wound up by the court;
  2. The Court found that the “centre of main interests” (“COMI”) of The Harley Medical Group (Ireland) Ltd. was not in the British Virgin Islands and was in Ireland. Consequently, the court found it had jurisdiction to wind up The Harley Medical Group (Ireland) Ltd.
  3. The court found that the Harley petition was deficient, as was the grounding affidavit of The Harley Medical Group (Ireland) Ltd. Consequently the court adjourned the application to permit The Harley Medical Group (Ireland) Ltd. to amend the petition and grounding affidavit to comply with Order 74, rule 7.

We are considering this judgment and will making any submissions arising from it to the Court at the next hearing date of the 29th May 2013.

Harley Medical Group (Ireland) Ltd Application for Winding up Judgment 16 May 2013

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